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How to criticize a Canadian judge (without undermining democracy)

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Judges

09/05/2017

US President Donald Trump made news by tweeting an attack on a judge who ruled against the federal government when several American states challenged his first travel ban in court. Trump was widely criticized for his reaction – not for disagreeing with the ruling, but for undermining respect for the justice system, and for the role of the courts in a democratic system.

Does that mean people can’t comment publicly on judges’ decisions? Not at all.

The idea for this eNews came from a March 6, 2017 article by Alicia Bannon and Daniel I. Weiner in U.S. News and World Report. In “How to Criticize a Judge” they considered the boundaries on criticism of US judges, particularly by American presidents. Their article on criticism that does not undermine democracy prompted reflections about public criticism of judges in Canada, where our system of government and traditions are different.

Parliament of CanadaPhoto credit: Library of Parliament/Martin LIpman

In both countries judges wield huge power over people’s lives, liberty and finances, and they play a crucial role in our democracies. In the Canadian system of government, there are three branches of government: the executive, legislative and judicial branches. The Cabinets of our federal and provincial governments direct government operations and have an “executive” or decision-making function. Our elected representatives in the federal Parliament and appointed Senate and elected members of provincial legislatures perform a “legislative” role by passing laws. And the courts perform an independent “judicial” role, interpreting and applying the laws, and resolving disputes.

In both democracies it is important for people to consider and discuss how the courts perform their role, and criticize if they wish, just as they discuss and criticize the performance of the other branches of government. Judges can’t have thin skins – their rulings affect people in important ways, and their decisions will seldom please everyone.

On the other hand, in Canada judges only speak about their decisions when they explain them in their reasons, which may be either spoken in court or filed in written form. This custom, intended to preserve impartiality and respect for our courts, prevents a judge from getting into public debates with unhappy litigants or dissatisfied critics.

Supreme Court of CanadaPhoto credit: Parks Canada Agency/M. Therrien

Judges respect and value the public’s right to comment on their work. But to be fair, criticism of a judge’s decision should be fully informed and based on all the facts, because a Canadian judge can’t reply to fill in any facts that may be overlooked in a critical comment. Media reports usually convey the bottom line, but do not include a judge’s full explanation for why they reached their conclusions. So when a judge’s reasons are available on a court’s website or in an online legal research resource, it is fair to read the reasons before criticizing publicly.

As Bannon and Wiener point out, a democratic society’s ability to resolve disputes peacefully depends on confidence in its justice system and shared acceptance that we respect the outcome of a court case even when we disagree with it. In Canada, as in the US, the responsible way to complain publicly about a judgment avoids undermining confidence in our democratic system by undermining the court’s authority. As an example, Bannon and Weiner cite the response of US President George W. Bush to a court decision giving Guantanamo detainees the right to challenge their detention. He is reported to have said “We’ll abide by the court’s decision — that doesn’t mean I have to agree with it.”

Recognizing their responsibility to maintain confidence in our democratic system, Canadian politicians have usually measured and balanced their comments on court decisions in a similar way. Unlike President Trump, they have also avoided unwarranted personal attacks on judges for their judgments. Legitimate criticism – criticism that is informed and respects the process - can contribute to democracy. It stimulates discussion and can sometimes persuade the other branches of government to change laws judges must apply. We all benefit from that.

Note:

Responding to the current situation in the US, on May 2, 2017 the American Judges Association issued this statement:

"The late Chief Justice William Rehnquist once said that criticism of judges and their decisions “is as old as our Republic” and can be a healthy part of the balance of power between the branches of government. Today, however, recent attacks on judges have not only become unhealthy but threaten to undermine the public’s understanding of the role of judges in a democratic society.

In a democratic society, judges will inevitably make rulings that challenge the authority of the other two branches or that protect the disadvantaged and those without political power.

Intemperate personal attacks on judges by political leaders are simply wrong. The political leaders of our country have an obligation to foster public understanding of the role of courts, even when they disagree with a court’s ruling.

Judges have historically been reluctant to respond to unfair attacks. But as far back as Chief Justice John Marshall, there have been times when judges have seen the need to speak up. This is one of those times.

The leaders of the American Judges Association will speak out in defense of judges who are unfairly attacked, and we encourage others to do so too. Unfair or unseemly attacks on individual judges are not merely an attack on that individual judge—they are an attack on the institution of the judiciary, an institution indispensable to our democracy.”